Mixing Law and Art: The Role of Anti-Discrimination Law ...

Hofstra Labor and Employment Law Journal

Volume 16 | Issue 2 Article 7

1999

Mixing Law and Art: The Role of Anti-Discrimination Law and Color-Blind Casting inBroadway TheaterBonnie Chen

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Recommended CitationChen, Bonnie (1999) "Mixing Law and Art: The Role of Anti-Discrimination Law and Color-Blind Casting in Broadway Theater,"Hofstra Labor and Employment Law Journal: Vol. 16: Iss. 2, Article 7.Available at: http://scholarlycommons.law.hofstra.edu/hlelj/vol16/iss2/7

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MIXING LAW AND ART:

THE ROLE OF ANTI-DISCRIMINATION LAW ANDCOLOR-BLIND CASTING IN BROADWAY

THEATER

I. INTRODUCTION

The issue of color-blind casting is a fresh and intriguing topicagainst the vast backdrop of employment discrimination law. The es-sence of this discussion is the clash between employees' equal employ-ment opportunity interests and employers' artistic freedom in hiringpractices. The issue of color-blind casting has rarely been litigated,'even though the general issue of racial discrimination in employmenthas been litigated extensively.2 Perhaps actors are reluctant to bring ra-cial discrimination claims against their employers because they perceivetheater and art as independent from the rest of the world, and thus, im-mune from the reaches of the law.'

This issue warrants a fresh look because minority employment op-portunities and artistic freedom are at stake.4 Perhaps, there have not

1. See Jennifer L. Sheppard, Theatrical Casting-Discrimination or Artistic Freedom?, 15CoLUi.-VLA J.L. & ARTS 267, 279 (1991) (stating that no state or federal court ever decidedwhether an actor's race falls under the business necessity or bona fide occupational qualificationexceptions).

2. See Stephen R. McAllister, One Anglo-Irish American's Observations on AffirmativeAction, 5 KAN. J.L. & PUB. POL'Y 21, 24 (1996) (discussing several statutory anti-discriminationmeasures).

3. See Harry Newman, Casting a Doubt: The Legal Issues of Nontraditional Casting, 19 J.ARTS MGNfT. & L. 55, 57 (1989) (stating that "you can't legislate art" in the performing arts indus-try); Patti Hartigan, Curtain Opens On Casting Debate, BOSTON GLOBE, Dec. 11, 1990, at 61(reporting that the theater industry has defined itself outside the purview of civil rights).

4. See Heekyung Esther Kim, Note, Race as a Hiring/Casting Criterion: If LaurenceOlivier Was Rejected for the Role of Othello in Othello, Would He Have a Valid Title VII Claim?,20 HASTINGS COMM. & Err. L.J. 397, 400 (1998) (stating that employment discrimination intheater "may warrant some sort of governmental regulation, or at least some viable legal relief,"because of the economic effect it has on actors and actresses).

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Chen: Mixing Law and Art: The Role of Anti-Discrimination Law and Color

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Hofstra Labor & Employment Law Journal

been enough opportunities for minority actors to voice their dissatisfac-tion with employment opportunities in the theater.5 Even the entertain-ment industry recognizes a need for diversity in the theater world, astheater is often a reflection of society.6 Today's employment sceneboasts a colorful melange of nationalities, with men, women, the dis-abled, the elderly, and racial minorities working side by side. However,for the most part, the theater continues to appear homogeneously white.7

For years critics have clamored for more racial minority representationin the entertainment industry.8

One could dismiss the issue of color-blind casting, saying societyhas more important things to discuss other than the entertainment indus-try. The issue is an important topic worth exploring in a legal light. In acountry that focuses so zealously on its entertainment celebrities, "thereis an insufficient number of minorities in film and television and thecurrent minority representation fails to accurately reflect the diversity ofcontemporary society." 9 This can have serious repercussions for society,including diminishing racial identities for minorities, discouraging chil-dren from participating in the entertainment industry, and decreasingemployment opportunities for minorities' 0

5. See generally John Wirt, Miss Saigon: Asian-American Actor Lands Plum Role in Musi-calAbout Vietnam, SUNDAY ADVOc. (Baton Rouge), May 4, 1997, (Magazine) at 19 (stating thatthe issues of minority casting should be brought to light to give more opportunities to minorities).

6. See Newman, supra note 3, at 57 (noting that legal issues in the performing arts industryare "somewhat taboo"); Hartigan, supra note 3, at 61 (reporting that Dennis DeLeon, then-commissioner of New York's Commission on Human Rights, recognized a history of racial dis-crimination in the theater industry).

7. See Newman, supra note 3, at 55 (noting that Actors' Equity, the actors' union, con-ducted a study revealing that 90% of all plays in the United States had all-white casts and theseproductions were hosted in cities that had at least a 50% minority population); Diane E. Lewis,Outside a Closed Circle, BOSTON GLOBE, Jan. 8, 1991, at 51 ("The art world is like an incestuousfamily. If the people who control the system don't socialize with people of color or have them inthe work force in appreciable numbers, then they are certainly not going to bring them into thegalleries.").

8. See Newman, supra note 3 at 55.9. Kim, supra note 4, at 399.

10. See Patricia M. Worthy, Diversity and Minority Stereotyping in the Television Media:The Unsettled First Amendment Issue, 18 HASTINGS COMM. & ENT. L.J. 509 (1996). Children areespecially "vulnerable to media images because they lack real world experience and therefore lackthe necessary basis for comparison." Id. at 534. Social scientists have claimed that the self-conceptof African-American children are harmed by the lack of African-American representation on tele-vision. See id. at 535. Social scientists have also found that "the television roles in which Blacksare cast communicate to Black children the negative value society places on them." Id. Further-more, research shows that "the self-esteem of [African-American] children may preclude themfrom achieving self-actualization or 'impede their ability to realize their personal and academicpotential in American society."' Id. at 536.

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Mixing Law and Art

Like exploring the facets of a diamond, this Note addresses manysides of the issue from an employment law perspective. This Note ex-amines actors as employees who should be hired on their merits and notsolely on the color of their skin. Essentially, this Note analyzes how Ti-tle VII of the Civil Rights Act of 1964 ("the Act")" addresses and mayapply to actors. On the other hand, this Note also discusses the employ-ers' perspective and whether exceptions, such as the bona fide occupa-tional qualification exception ("BFOQ") 2 and the business necessity de-fense,13 apply to the theater. Theater is vastly different from othersources of employment because it involves art and illusion, which aregenerally controlled by appearance. Therefore, it may be a business ne-cessity to hire actors based on their appearance. 4

First of all, what is theater? Basically, theater is the business ofentertaining and enlightening the audience by taking it to another timeand place. Props, dialogue, and costumes play significant roles in theprocess of making the stage seem like a different world. In fact, with to-day's heightened technology, productions are becoming known for theirfancy props. 5 Phantom of the Opera is known for its crashing chande-lier, and Miss Saigon is known for its hovering helicopter. 6 Broadwayscenery and props provide a $20 million and $30 million market fortechnology and engineering firms. 7 If so much emphasis is placed onusing technical props to create an illusion on stage, perhaps it followsthat the appearance of the actors is included in that process."

II. THE MIss SAIGON CONTROVERSY

The most publicized controversy revolved around the selection of aBritish actor for a Eurasian role in Miss Saigon.9 In 1989, Miss Saigon,

11. 42 U.S.C. §§ 2000e to 2000e-17 (1994).12. See id. § 2000e-2(e)(1).13. See Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971); infra Part VII.14. See infra Part VII.15. See Wirt, supra note 5, at 21 (stating that in today's technological age, Broadway shows

like Miss Saigon often have more hype about their fancy props than their artistic content).16. See Kevin Coughlin, A Little Rocket Science, A Little Magic, STAR-LEDGER (New

Windsor, NY), Mar. 9, 1998, at 22.17. See id.18. Make-up and costumes often disguise actors to appear like people that they are not, in-

cluding people of another racial identity. See Tisa Chang, Race is Crucial in Some Stage Roles,USA TODAY, Aug. 17, 1990, at A12.

19. See Patti Hartigan, Curtain Opens On Casting Debate, BOSTON GLOBE, Dec. 11, 1990,at 61 (discussing the controversy as a "heated debate"); Alex Witchel, Union Weighs 'Miss Sai-gon' Casting, N.Y. TIMEs, July 25, 1990, at C12.

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a musical written by the creators of Les Miserables, opened in Londonand was brought to Broadway in 1990 by producer Cameron Mackin-tosh.' In London, British actor Jonathan Pryce played the half-Frenchand half-Vietnamese role of "the Engineer."'" The controversy beganwhen Actor's Equity ("Equity"), a union representing American stageactors, rejected Mackintosh's application to allow Jonathan Pryce to re-peat his role in the Broadway production.22 In response, Mackintoshcanceled the show.2' Because Miss Saigon was a great source of em-ployment, (offering 182 jobs, which were mostly minority roles), Equityreversed its vote and allowed Pryce to play the part of the Engineer.24

David Henry Hwang and B.D. Wong, Tony award winners for M.Butterfly, were the ones who brought the controversy to Equity's atten-tion.5 Their major concern was the lack of roles available to Asian ac-tors."' Equity's initial decision was celebrated by the Asian-Americantheater community, but also sparked a national debate on the issue ofcolor-blind casting.27 Another concern was that casting Pryce wouldcondone the "offensive and demeaning" practice of "yellow face."28

Similar to the "black face" practices of the minstrel shows, yellow faceuses makeup in a grotesque and exaggerated manner to parody and de-grade the physical characteristics of an Asian.29

20. See Wirt, supra note 5 at 19; Mabel Ng, Note, Miss Saigon: Casting for Equality on anUnequal Stage, 14 HASTINGS COMM. & ENT. L.J. 451,454 (1992).

21. See Edwin Wilson, Why Equity's Bluff Didn't Work, WALL ST. J., Aug. 20, 1990, at A5.22. See Megan Rosenfeld, 'Miss Saigon' Broadway Bound, WASH. POST, Sept. 19, 1990, at

Cl. Actor's Equity has the authority to deny a work permit to a foreign actor, which could restrictthe actor's ability to obtain a visa. See id. Actor's Equity and its British counterpart are protectiveof their memberships, and constantly preclude each other's performers from working in their re-spective countries. See id.

23. See Mervyn Rothstein, Producer Cancels 'Miss Saigon'; 140 Members Challenge Eq-uity, N.Y. TIMES, Aug. 9, 1990, at C15.

24. See Rosenfeld, supra note 22.25. See Sheppard, supra note 1, at 268.26. See id.27. See Kari Granville & Don Shirley, Actors' Equity Says White Can Portray Eurasian,

L.A. TIMES, Aug. 17, 1990, at A4. The Miss Saigon controversy brought the discussion of color-blind casting to the national arena and began the debate of how equal employment principles couldfit in theater. See id.

28. Chang, supra note 18, at A12 (defining "yellow face" as the practice of an actor portray-ing an Asian role using "exaggerated makeup, stilted accents and cliched mannerisms").

29. See id. For example, in the "black face" practices of the minstrel shows, white actorswould paint their faces black and apply huge white lips to their faces to poke fun at African-Americans. See, e.g., Robert Tabscott, Seeing Evil in Black-Cork Minstrels, ST. Louis POST-DISPATCH, Aug. 4, 1993, at B7.

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However, Equity's original decision to prohibit Pryce from per-forming as the Engineer in Miss Saigon was also criticized as contradic-tory and hypocritical.0 This decision seemed to stress that minority-specific roles be performed by an actor of the same race.3 The fewavailable racial minority roles would be preserved for minority actors.Equity also encourages color-blind casting, a practice which allowsactors to play any role, regardless of race, unless race is germane to thecharacter or play.33 Thus, roles that are traditionally cast for Caucasiansshould be open to minority actors, giving them more employment op-portunities. Equity's approach to color-blind casting seemed inconsis-tent, implementing it only when it was favorable to minorities. Thishardly seems fair and is possibly at odds with Title VI.24 Critics haveargued that, "[y]ou can't encourage the casting of an African-Americanas a Caucasian and forbid a Caucasian to play an Asian. 35

The controversy spurred Equity to reverse its original position andallow Pryce to play the part of the Engineer.36 Alan Eisenberg, Equity'sexecutive secretary, apologized on behalf of the union and termed Eq-uity's position on color-blind casting as "distorted and misconstrued."37

In the end, the show went on, and Miss Saigon employed many Asian-American actors.38 In this instance, color-blind casting prevailed. How-ever, almost a decade later, the debate continues as more minority actorsenter the theater and as racial discrimination law evolves.

MI. COLOR-BLIND CASTING

As previously discussed, color-blind casting is viewed as a tech-nique to create more equal employment opportunities for actorsY.3 Alsodefined as "nontraditional casting," Equity formally defined it as the"casting of ethnic and female artists in roles in which race, ethnicity, orgender is not germane to the character's or the play's development."'

30. See Wilson, supra note 21.31. See id.32. See Harry Newman, Casting a Doubt: The Legal Issues of Nontraditional Casting, 19 J.

ARTS MGmt. & LAW 55, 56 (1989).33. See id.34. See 42 U.S.C. § 2000e-2 (a)(1) (1994); infra Part V.A.35. Wilson, supra note 21.36. See Granville & Shirley, supra note 27.37. Id.38. See id.39. See Newman, supra note 32, at 56.40. Id.

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The concept of casting actors in roles regardless of their race is preva-lent throughout the history of theater, with many actors having por-trayed characters different from themselves.4

Sometimes typical white roles are purposely played by minorityactors to make a point. For example, all African-American productionsof Hello Dolly and The Three Sisters tell traditionally white tales fromthe African-American perspective.42 Hollywood also engages in color-blind casting, for example; Yul Brynner played the King of Siam in TheKing and 1,4' and Denzel Washington became Richard III in Much AdoAbout Nothing.44

Color-blind casting was not intended to compromise the artisticintegrity of the production. 5 In fact, productions that implement race aspart of their central story line should not employ color-blind casting. 6

This Note will discuss flexible ways to allow color-blind casting with-out compromising the production's artistic integrity 7

The Non-Traditional Casting Project ("NTCP") is a non-profit ad-vocacy organization, whose main mission is to discuss and resolve ra-cial problems in theater, television, and film. 48 It is the product of thejoint efforts of Equity, the Dramatists Guild, the Society of Stage Direc-tors and Choreographers, the League of American Theatres and Produc-ers, and the League of Resident Theatres. 49 One of NTCP's main con-cerns is the limited number of employment opportunities available to

41. See Lois L. Krieger, Note, 'Miss Saigon' and Missed Opportunity: Artistic Freedom,Employment Discrimination, and Casting for Cultural Identity in the Theater, 43 SYRACUSE L.REV. 839, 846 (1992) (noting that in the Elizabethan age and Greek theater, all male productionswould cast boys in female roles); Laurie Smith Anderson, Librarian Wills Shakespeare on Kids,ADvoc. (Baton Rouge), Aug. 13, 1998, at A20 (noting that Shakespeare cast men in female roles);MENDEL KOHANsKY, THE DISREPUTABLE PRoFESsIoN 14 (1984) (explaining that because nowomen participated in Greek classical theater, male actors played female roles).

42. See Patti Hartigan, Casting Calls, BOSTON GLOBE, Aug. 19, 1990, at B38.43. See Mel Gussow, Striding Past Dragon Lady and No. I Son, N.Y. TIMES, Sept. 3, 1990,

atAll.44. See Hartigan, supra note 42.45. See Newman, supra note 32, at 57.46. See id.; see also Ken Narasaki, Letter to the Editor, S.F. CHRON., Aug. 16, 1990, at E5

('The architects of Equity's [nontraditional] casting policy agree that [nontraditional] castingshould not be employed where race is an issue, which it most certainly is in an interracial lovestory like 'Miss Saigon."').

47. See infra Part IX.C.48. See Granville & Shirley, supra note 27; Sharon Jensen, The Non-Traditional Casting

Project (visited Mar. 24, 1999) <http://www.arts.endow.gov /partner/AccessibilitylNTCP. html>;Non-Traditional Casting Project (visited Mar. 24, 1999) <http://www.ntcp. org/>.

49. See Newman, supra note 32, at 56.

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minority actors."0 While NTCP respects the artistic license of the pro-ducer and director, it also pushes for inclusive hiring standards and bal-anced representations of minorities by facilitation and mediation' Sofar, the NTCP has held national conferences, seminars, and compiledrosters of minority artists."

Color-blind casting remains consistent with the premise that theactor has accomplished the job by effectively portraying someone else.So why should actors like Jonathan Pryce be forced to play charactersthat are similar to themselves in race? Such a requirement might crimpthe actor's ability to grow by limiting flexibility in portraying differentcharacters.

Many critics of color-blind casting doubt that it is adequate enoughto improve the opportunities available for minority actors. 3 Conceptu-ally, because color-blind casting promotes casting regardless of the ac-tor's race, a Caucasian could be cast in a part intended for a minorityactor. Technically, that could also deprive minority actors of race-specific roles that they themselves match. Color-blind casting also ig-nores the fact that the way actors look seriously affects the way theircharacters are represented. For example, would color-blind casting forcea director to have a multiethnic cast when the play calls for characters ofjust one race? While the Miss Saigon controversy was brewing, JoannaMerlin, co-chair of NTCP stated, "However strongly Equity feels theymust condemn the casting of Jonathan Pryce ... I believe their vote se-riously threatens freedom of artistic choice. How can anyone legiti-mately dictate who will or will not be cast in a show except the creativeteam?"

On the other hand, some critics fear that proponents of artistic in-tegrity will use color-blind casting to further exclude minorities. 55 It wasmeant to open previously closed opportunities for minorities, but inpractice, minorities are still playing stereotypical roles.56 Although

50. See id.51. See Jensen, supra note 48.52. See id.53. See Mabel Ng, Note, Miss Saigon: Casting for Equality on an Unequal Stage, 14

HASTINGS COMM. & ENT. L.J 451, 454,460 (1992).54. Mervyn Rothstein, Producer Cancels 'Miss Saigon;' 140 Members Challenge Equity,

N.Y. TuMES, Aug. 9, 1990, at C15.55. See Ng, supra note 53, at 461.56. See id. Minorities are often typecast in certain roles. For example, Latinos and African-

Americans are often cast as gangsters or prostitutes, or used to fill insignificant roles. See Chas.Floyd Johnson & Diane Kerew, Minorities in Television (visited Mar. 24, 1999) <http:llwww. can-cus.org/what/qindexes/sum93/minorities.html>. Asian-American women are often cast as subser-

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color-blind casting is a step in the right direction, it has yet to be per-fected to improve employment opportunities.

IV. RACE-SPECIFIC CASTING

In some instances, the race of the actor may be relevant in castingdecisions with respect to the role the actor plays. 7 Race-specific castingplaces actors in racially-defined roles, such as "characters in a periodplay, historic figures, members of a nuclear family, and characterswhom a playwright has specified to be of a certain race."" s

Interestingly, not all artists prefer color-blind casting, with somebelieving that certain stories should be told as accurately as possible. 9

As a result, race-specific casting is used to select actors for roles accord-ing to their raceW At the University of California at Los Angeles, angryChicano students walked out of a student production casting a Cauca-sian female as a Chicana artist.6' Such protests highlight the lack ofemployment opportunities for minorities in theater. The scarcity of rolesfor minorities may warrant the application of federal anti-discriminationlaw.

V. THE CIVIL RIGHTS ACT OF 1964

Congress passed the Civil Rights Act of 196462 to remedy the racial dis-crimination that had long shamed this nation.63 Passed in the midst ofthe civil rights movement, the statute was implemented in response toracial inequalityf' Before the passage of the Act, African-Americanshad been emancipated from slavery for over a 100 years, but were still

vient sex objects, and Asian men are expected to be martial arts experts. See id.57. See Jennifer L. Sheppard, Theatrical Casting-Discrimination or Artistic Freedom?, 15

CoLUM.-VLA J.L. & ARTS 267, 275 (1991) (defining race-specific casting).58. Id.59. See Janet I-Chin Tu, Playwright August Wilson, Now Settled in Seattle's Misty Nest,

Writes About the Black Experience Like No Other Storyteller, SEATILE TIMES, Jan. 18, 1998, at12. Tony Award winning playwright, August Wilson, opposes color-blind casting and prefers thatAfrican-Americans tell their own stories. See id.

60. See Sheppard, supra note 57, at 275.61. See John Digrado, Seven Walk Out Over, DAILY BRuIN ONLINE (May. 22, 1996)

<http://www.dailybruin. ucla.edu/ db/issues/96/5.22/news.play.htnil>; see infra Part IX.A.62. 42 U.S.C. §§ 2000e to 2000e-17 (1994).63. See S. REP. No. 102-286, at 2 (1992).64. See H.R. REP. No. 88-914, at 7 (1963) (stating that, "the opportunity for every individ-

ual, regardless of the color of his skin, to have access to places of public accommodations... is sodistinctive in its nature that its denial constitutes a shocking refutation of a free society").

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denied certain fundamental rights.65 Congress enacted the Act as a cata-lyst to spur the elimination of racial discrimination.6 Indeed, no piece oflegislation can attempt to eliminate all racial discrimination, but the Act"will commit our Nation to the elimination of many of the worst mani-festations of racial prejudice."67

Congress passed Title VII of the Act to deal with employment dis-crimination." The congressional intent behind Title VII is to provideformal procedures to eliminate employment discrimination based onrace, color, religion, or national origin. 69 In Griggs v. Duke Power Co.,70

the Supreme Court examined the legislative objective of Title VII, 7'

stating that Title VII was not designed to guarantee employment for mi-norities.72 Instead, Title VII was meant to "remov[e] artificial, arbitrary,and unnecessary barriers to employment when the barriers operate in-vidiously to discriminate on the basis of racial or other impermissibleclassification." 73

A. Unlawful Employment Practice Defined - Title VII

The prevailing federal anti-discrimination section continues to beTitle VII. The relevant section states:

It shall be an unlawful employment practice for an employer-(l)to fail or refuse to hire or to discharge any individual, or oth-erwise to discriminate against any individual with respect to hiscompensation, terms, conditions, or privileges of employment,because of such individual's race, color, religion, sex, or na-tional origin . ... '4

In applying this statute to Broadway theater, casting actors accord-ing to their race seems blatantly violative of this rule. A decision to re-ject an actor based on race seems discriminatory on its face. However,

65. See id. at 2.66. See id.67. Id.68. See 42 U.S.C. § 2000e-2 (1994).69. See H.R. REP. No. 88-914, at 7.70. 401 U.S. 424 (1971), overruled by Wards Cove Packing Co. v. Atonio, 490 U.S. 642

(1989). The Civil Rights Act of 1991 overruled Wards Cove, thereby reinstating Griggs. See H.R.REP. No. 102-40(11), at 2 (1991), reprinted in 1991 U.S.C.C.A.N. 694,695.

71. See Griggs, 490 U.S. at 429-30.72. See id. at 430.73. Id at 431.74. 42 U.S.C. § 2000e-2(a)(1).

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refusing to audition an actor because the part requires the actor to be ofa certain race exists in the theater world.7- The casting director selectsactors that have a certain look,76 and race is often part of that considera-tion. This brings up the issue of whether casting an actor according torace qualifies as a BFOQ.77

B. The Bona Fide Occupational Qualification

The BFOQ exception, found in Title VII of the Act, reads as fol-lows:

it shall not be an unlawful employment practice for an employerto hire and employ employees.., on the basis of his religion,sex, or national origin in those certain instances where religion,sex, or national origin is a bona fide occupational qualificationreasonably necessary to the normal operation of that particularbusiness or enterprise .... 7'

Race-specific casting seems to violate Title VII on its face and cannotbe justified because the BFOQ exception does not exempt employmentpractices based on race.7" Courts have stated that the BFOQ exceptionwas not meant to engulf the rule established in § 2000e-2(a)(1). 0

The Equal Employment Opportunity Commission ("EEOC") andCongress interpret the BFOQ exception narrowly."' The words,"reasonably necessary to the normal operation of that particular busi-

75. See Jim Sollisch, Need for Affirmative Action Still Exists, DEr. NEWS (April 4, 1996)<http:ldetnews.com/EDITPAGEI9604/04/comment2/comment2.htm> ("If you're in a position tohire an engineer, let's say, and the script in your head reads engineer as a 'white male,' you willlook for a white male. It's not that you would discriminate against a qualified African-Americancandidate - it's that you wouldn't be in a position to consider an African-American candidate.").

76. See id.77. 42 U.S.C. § 2000e-2(e)(1).78. Id.79. See id. § 2000e-2(a)(1); see also Milwaukee County Pavers Ass'n, v. Fiedler, 992 F.2d

419, 422 (7th Cir. 1991) (stating that there is a BFOQ for sex discrimination, but not for racialdiscrimination); Malhotra v. Cotter & Co., 885 F.2d 1305, 1308 (7th Cir. 1989) ("Title VII's de-fense of [BFOQ is]... available in cases of discrimination on the basis of sex or national origin,[but] is unavailable where discrimination is based on race, color, or ethnicity."); Miller v. TexasState Bd. of Barber Exam'rs, 615 F.2d 650, 652 (5th Cir. 1980) (stating that because "race is con-spicuously absent from the [BFOQ] exception; ... the bare statute could lead one to conclude thatthere is no exception for either intentional or unintentional racial discrimination").

80. See Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385, 387 (5th Cir. 1971) (statingthat the BFOQ should be interpreted narrowly).

81. See id.

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ness" 2 were carefully drafted so that the BFOQ would not become aloophole that employers could exploit to validate employment discrimi-nation." Each of those terms implies an objective, rather than a generalsubjective standard.'

The term "necessary" has been defined as requiring a "business ne-cessity test." The BFOQ will apply when the "essence of the businessoperation would be undermined.... ,6 "Occupational" has been de-fined as a requirement that affects employees' ability to perform theirjobs.' When employers want to invoke the BFOQ exception, they mustdemonstrate that the employment practice is related to the job, relates tothe employee's ability to do the job, and relates to the essence of theirbusiness." An employer must prove that one of the employee's charac-teristics that is used as a basis for an employment decision is related tothat employee's ability to perform, and that those job-related activitiesare a part of the essence and success of the business.89 The EEOC hasinterpreted Title VII as allowing sex as a BFOQ in hiring actors and ac-tresses if it is necessary for the purpose of authenticity." Employers canhire only women if the job requires the physical characteristics of awoman's body, such as modeling brassieres.9 '

Again, the BFOQ exception does not apply to race, color or eth-nicity.' One can hazard a guess that Congress could not conceive of anysituation in which race could be a valid qualification for a job. Eventhough race is not a BFOQ for authenticity purposes, perhaps appear-ance may qualify under the exception. Senators Joseph Clark and Clif-ford Case explained that a casting director does not need the BFOQ ex-ception to hire someone who fits the physical characteristics of a role.93

They stated that:

82. 42 U.S.C. § 2000e-2(e)(1).83. See Diaz, 442 F.2d at 387.84. See UAW v. Johnson Controls, Inc., 499 U.S. 187, 201 (1991) (emphasizing that the

language of the BFOQ exception "prevents the use of general subjective standards and favors anobjective, verifiable requirement").

85. Diaz, 442 F.2d at 388.86. Id.87. See Johnson Controls, 499 U.S. at 201.88. See id.89. See id.90. See 29 C.F.R. § 1604.2(2) (1997).91. See Lois L. Krieger, Note, 'Miss Saigon' and Missed Opportunity: Artistic Freedom,

Employment Discrimination, and Casting for Cultural Identity in the Theater, 43 SYRACUSE L.REV. 839, 846, 855 (1992).

92. See supra note 79 and accompanying text.93. See 110 CONG. REC. 7217 (1964) (reporting comments by Senators Joseph Clark and

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[a] director of a play or movie who wished to cast an actor inthe role of a Negro could specify that he wished to hire some-one with the physical appearance of a Negro-but such a personmight actually be non-Negro. Therefore, the act would not limitthe director's freedom of choice.94

Some actors' appearances do not conform to the stereotypical con-ception of their ethnicity. If race is not grounds for hiring an actor, per-haps appearance is. The senators went on to say that if a movie com-pany was making a movie about Africa, it could hire extras of a certainrace or color to make the movie more authentic.95 This statement seemsto imply that discriminating according to appearance while casting ac-tors may not violate Title VII.

VI. EQUAL RIGHTS UNDER THE LAW- § 1981

Section 1981 does not explicitly address employment discrimina-tion, but prohibits discrimination in making and enforcing contracts.96

Employment involves contractual relationships which can be used toestablish a claim for employment discrimination based on race.97 Sec-tion 1981(a) reads:

All persons within the jurisdiction of the United States shallhave the same right in every State and Territory to make and en-force contracts, to sue, be parties, give evidence, and to the fulland equal benefit of all laws and proceedings for the security ofpersons and property as is enjoyed by white citizens, and shallbe subject to like punishment, pains, penalties, taxes, licenses,and exactions of every kind, and to no other.98

However, in Patterson v. McLean Credit Union," the SupremeCourt ruled that § 1981 does not prohibit racial discrimination in theworkplace or in other instances after the formation of a contract."° TheCourt held that "racial harassment relating to the conditions of employ-ment is not actionable under § 1981 because that provision does not

Clifford Case regarding the BFOQ exception).94. Id.95. See id.96. See 42 U.S.C. § 1981(a), (b) (1994).97. See id. § 1981(a)98. Id.99. 491 U.S. 164 (1989).

100. See Patterson, 491 U.S. at 171.

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apply to conduct which occurs after the formation of a contract andwhich does not interfere with the right to enforce established contractobligations."''

Congress overruled Patterson by amending the Act in 1991 tobroadly define the phrase, "make and enforce contracts,' '""e to "[include]the making, performance, modification, and termination of contractsand the enjoyment of all benefits, privileges, terms and conditions of thecontractual relationship.""0 3

In Ferrill v. Parker Group, Inc.,' the court held that § 1981"broadly prohibits intentional discriminatory conduct which interfereswith the terms and conditions of an employment, or other, contract."'05

The Ferrill court stated in dicta that its decision would probably preventemployers from hiring actors and actresses based on race."° "It mighteven go so far as preventing the exclusive hiring of black actors to playsuch roles as Othello."'0 7 The court then stated that "nevertheless, this isthe state of the law and this court has found no authority to the con-trary."'0 Section 1981 is distinct from Title VII, but the analysis for de-termining intentional interference with an employment contract is thesame."° To establish a prima facie case under both Title VII and § 1981,the plaintiff must jump over the same hurdles."0

VII. THE BuSINESS NECESSITY DEFENSE

The business necessity doctrine evolved from the Supreme Court'sdecision in Griggs v. Duke Power Co."' The Griggs court held, "[t]heAct proscribes not only overt discrimination but also practices that arefair in form, but [are] discriminatory in operation. The touchstone is

101. Id.102. 42 U.S.C § 1981(a).103, 42 U.S.C. § 1981(b); H.R. REP. No. 102-40(1), at 2, reprinted in 1991 U.S.C.C.A.N.

694, 694 (stating that the 1991 Act "overrules... Patterson... [b]y restoring the broad scope ofSection 1981 ... [by] ensur[ing] that all Americans may not be harassed, fired, or otherwise dis-criminated against in contracts because of their race").

104. 967 F. Supp. 472 (N.D. Ala. 1997).105. Ferrill, 967 F. Supp. at 474.106. See id. at 475.107. Id.108. Id.109. See id. at 474 ("Even though the statutes and remedies are distinct, the analysis for de-

termining whether a defendant intentionally interfered with an employment contract under[section] 1981 is the same as that employed under Title VII.").

110. See Ferrill, 967 F. Supp. at 474.111. 401 U.S. 423 (1970).

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business necessity. If an employment practice which operates to excludeNegroes cannot be shown to be related to job performance, the practiceis prohibited."

2

"The legislatively created [BFOQ] exception does not apply to ra-cial discrimination but the judicially created business necessity doctrinedoes.""' 3 The BFOQ exception exempts intentional and unintentionaldiscrimination, but "the business necessity doctrine is apparently lim-ited to practices which are facially neutral but discriminatory in ef-fect."'"4 It is questionable whether the business necessity doctrine shouldbe limited to intentional discrimination."' This limitation is not explic-itly stated in the Griggs opinion."6 The Supreme Court has stated thatthe business necessity defense is more lenient on the employer than theBFOQ exception."

7

The Supreme Court's decision in Griggs placed the burden ofproof on the employer in disparate impact cases."8 That was the stan-dard set in 1971, which was effective in removing barriers to womenand minorities in the workplace." 9 It is more practical to place the bur-den of proof on the employer, because the employer controls the hiringprocess, selects the employment practice used to make hiring decisions,and balances the costs and benefits in making those decisions.' Andnot only is it practical, but placing the burden of proof on the employeris consistent with McDonnell Douglas Corp. v. Green.2'

However, the Supreme Court lightened the burden of proof for theemployer in Wards Cove Packing Co. v. Atonio. 22 Under Wards Cove,the standard shifted the burden to the employee, requiring him to provethat the discriminatory practice was not linked to a business objective.'2

112. Griggs, 401 U.S. at 431.113. Miller v. Texas State Bd. of Barber Exam'rs, 615 F.2d 650, 653 (5th Cir. 1980) ("For

example, the undercover infiltration of an all-Negro criminal organization or plainclothes work inan area where a white man could not pass without notice. Special assignments might also be justi-fied during brief periods of unusually high racial tension." (citing Baker v. City of St. Petersburg,400 F.2d 294, 301 (1968))).

114. Id..115. Seeid.116. See id.117. See UAW v. Johnson Controls, Inc., 499 U.S. 187, 198 (1991).118. See Griggs, 401 U.S. at 432.119. See H.R. REP. No. 102-40(1), at 5 (1991), reprinted in 1991 U.S.C.C.A.N. 694, 698.120. See id. at 6, reprinted in 1991 U.S.C.C.A.N. at 699.121. 411 U.S. 792, 802 (1973) (establishing the framework for a prima facie case of discrimi-

nation which placed the burden of proof on the employer); see infra Part VII.122. 490 U.S. 642 (1989).123. See Wards Cove, 490 U.S. at 659-60.

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Wards Cove emphasized that the burden of proving discrimination mustremain with the plaintiff at all times.' 4 Wards Cove also redefined theburden of proof structure to require the employer to carry the burden ofproduction, and the employee to carry the burden of persuasion.'9 Be-cause this decision limited the civil rights protections that were avail-able under Griggs, Congress responded by overruling Wards Cove andreinstating Griggs.2'

With the passage of the Civil Rights Act of 1991, Congress reaf-firmed the Griggs burden of proof structure in disparate impact cases.'27

Congress explained that, "an unlawful employment practice based ondisparate impact is established when a complaining party demonstratesthat an employment practice results in a disparate impact, and the re-spondent fails to demonstrate that such practice is required by businessnecessity."' ' The employer's good faith or intent is irrelevant becauseas long as the employment practice is discriminatory and unrelated tomeasuring job qualifications, it is illegal.' 29

After the employer fulfills the burden of establishing a businessnecessity, the burden of production falls back on the plaintiff.3 Oncethe employer uses the business necessity defense to justify an employ-ment practice, which has a significant adverse impact on minorities, theemployee then has the right to show the existence of other employmentpractices available that would not have such an impact on minoritiesand would satisfy the employer's legitimate business interests. 3'

The Fifth Circuit discussed, in dicta, the possibility that business ne-cessity would be a valid defense for a director engaging in race-specificcasting.32 "For example, it is likely that a black actor could not appro-priately portray George Wallace, and a white actor could not appropri-ately portray Martin Luther King, Jr."'33

124. See id. at 659.125. See id.126. See H.R. REP. No. 102-40(1), at 6, reprinted in 1991 U.S.C.C.A.N. 694, 699.127. See id.128. Id.129. See Griggs, 401 U.S. at 432.130. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1980) (stating

that after defendant has met this burden, plaintiff must demonstrate that this "proffered reason wasnot the true reason for the employment decision"); Easley v. Anheuser-Busch, Inc., 758 F.2d 251,256 n.10 (8th Cir. 1985) ("However, if the employer carries the burden of production, the pre-sumption of illegal discrimination drops from the case, and the plaintiffs must show that the em-ployer's proffered reasons were merely a pretext.").

131. See H.R. REP. No. 102-40(11), at 14, reprinted in 1991 U.S.C.C.A.N. 694,707.132. See Miller, 615 F.2d at 654.133. Id.

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VIII. How TO DEMONSTRATE A PRIMA FACE CASE OF RACIALDISCRIMINATION UNDER TITLE VII

Because the issue of discrimination in the theater has not been de-cided by the courts, a hypothetical would assist in applying Title VIIfactually. Suppose a Hispanic actor, Jose, auditions for the main rolethat has ,no specified race, but is traditionally played by a Caucasianactor. The role is the lead part of a captain on a ship, and the productionis a musical. Jose is experienced and qualified in acting, dancing, andsinging. He has played many parts requiring all three skills; most nota-bly the lead role in West Side Story, which is traditionally cast with aHispanic actor. After his audition, the casting director says, "Sorry, youjust don't have the look for the role of the captain." The director contin-ues to search for an actor to fill the role. Jose suspects that his race is theonly reason for his rejection and seeks legal counsel. This Note willnow address if Jose has a valid cause of action under Title VII.

First, to prove a prima facie case of racial discrimination, Josemust fulfill all of the elements of the McDonnell Douglas formula. ' 4

Those elements are: (1) the plaintiff must belong to a racial minority,(2) he must have applied for and be qualified for the job for which theemployer was seeking applicants, (3) despite qualifications, the actorwas rejected, and (4) after the rejection, the position is still open and theemployer continued to seek applicants from persons of the complain-ant's qualifications.135 In this hypothetical, all of the elements of theprima facie case seem to be fulfilled, since Jose is a member of a racialminority, he answered the casting call and was qualified for the part interms of.acting ability, was rejected, and the casting director is stilllooking for someone else to fill the role.

The established prima facie case leads to a presumption of dis-crimination, compelling the court to engage in a process of burdenshifting. 136 The burden then shifts to the employer to give a nondiscrimi-natory reason for rejecting the applicant."7 The employer must offerevidence to raise a genuine issue of fact as to whether or not there was alegitimate reason for rejecting the applicant.' In this hypothetical, theemployer could argue that the actor did not fulfill all of the qualifica-

134. See McDonnell Douglas, 411 U.S. at 802.135. See id.136. See id.137. See id.138. See id. at 802-03.

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tions required for the job. The director could say that having a certainlook is essential in casting, and it is a legitimate business justificationthat the actor look a certain way, which this particular applicant did not.Perhaps the director imagined the role to characterize an aged sailorwith a white beard and pale skin. Because theater involves creating acertain illusion, the director can argue that the actor's appearance is es-sential to the business, and therefore, appearance is legitimate hiringcriteria. The hypothetical casting director could argue that the role ofthe captain should be played by a dignified looking actor, and Jose justdoes not have that appearance.

The employer must only proffer nondiscriminatory reasons whythe applicant was rejected.'39 The employer does not need to be moti-vated by these reasons.'" This could be instrumental in justifying thecasting director's employment decisions. However, the employer is re-quired to produce a nondiscriminatory reason that was available at thetime the decision was made. 4' The employer is not required to be moti-vated by that reason, but the reason must be available during the deci-sion making process."'

The employer's burden is light because the employer is only re-quired to offer nondiscriminatory reasons for rejecting the plaintiff. 43

The employer is not required to prove such nondiscriminatory rea-sons.'" In the hypothetical, the casting director could just offer the rea-son that he is not casting according to "race" but "appearance." Thecasting director is not discriminating against a particular race, but justselecting actors according to the production's needs. Once the employerprovides evidence of a legitimate, nondiscriminatory reason for refusingto hire the plaintiff, the presumption of discrimination is rebutted. 45

139. See McDonnell Douglas, 411 U.S. at 802.140. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254 (stating that "[tihe

defendant need not persuade the court that it was actually motivated by the proffered reasons").141. See Turnes v. AmSouth Bank, 36 F.3d 1057, 1061 (lth Cir. 1994) (explaining that the

employer must "produc[e] a reason that was available to it at the time of the decision's making").142. See id.143. See Meeks v. Computer Assoc. Int'l, 15 F.3d 1013, 1019 (11th Cir. 1994) ('This burden

is 'exceedingly light'; the defendant must merely proffer [nongender] based reasons, not provethem." (quoting Perryman v. Johnson Prod., Inc., 698 F.2d 1138, 1142 (1lth Cir. 1983))).

144. See id..145. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (holding that once the de-

fendant meets this burden of production, "the presumption raised by the prima facie case is rebut-ted") (quoting Burdine, 450 U.S. at 255).

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The plaintiff then has the chance to show by a preponderance ofthe evidence that the employer had a discriminatory intent.4 6 The plain-tiff must show that the discriminatory reason more likely than not moti-vated the employer to reject the applicant.'47 If the employer refused touse legitimate, nondiscriminatory reasons in its employment decisions,the trier of fact can infer intentional discrimination. 4 ' This does notguarantee that the plaintiff will win the case.'49

Jose could rebut the director's argument, (which was that he is onlycasting according to "appearance" and not "race") by saying that the di-rector's concept of a "dignified look" does not include Hispanic-Americans. Because Hispanic-Americans are sometimes cast in gang-ster settings, 50 the casting director's image of a Hispanic-American mayconvey violence rather than dignity. Jose could argue that the director isbasing the decision on the negative stereotype of Hispanic-Americans,and not on Jose's individual qualifications.

If Jose's qualifications are equal to those of a Caucasian actor, thecasting director is not required to hire Jose over the Caucasian actorsince Title VII does not promote preferential treatment. 5 ' The employerhas the discretion to choose among candidates for the job, as long as thedecision is based on lawful criteria.'52 If Jose does not get the part of thecaptain because another more qualified Caucasian actor was chosen, Ti-tle VII does not entitle him to judgment against the employer.' Even ifthe court finds that the employer misjudged the qualifications of theapplicants, that does not subject him to liability under Title VII.'s Thismay be probative of whether the employer used discriminatory reasonsin making the decision.'

Under the McDonnell Douglas framework,'56 the court is requiredto award judgment to the plaintiff if any reasonable person would find aprima facie case of discrimination, and the defendant failed to show

146. See Burdine, 450 U.S. at 253.147. See id. at 256.148. See Hicks, 509 U.S. at 511.149. See id.150. See Teresa Talerico, Jennifer Lopez A Bright Star For Latina Acting Hopefuls, SEATTLE

POST-INTELLIGENCER, July 9, 1998, at Cl.151. See Burdine, 450 U.S. at 259.152. See id.153. See id. ("[Tihe employer has discretion to choose among equally qualified candidates,

provided the decision is not based upon unlawful criteria.").154. See id.155. See id.156. See McDonnell Douglas, 411 U.S. at 802.

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evidence that there was a nondiscriminatory reason to refuse hiring theplaintiff.57 If the defendant has failed to meet its burden, but reasonablepeople disagree on whether the prima facie case is established, then atrier of fact is required to resolve this factual issue."'

After the plaintiff has established a prima facie case of racial dis-crimination, he or she may be entitled to bring claims of either disparatetreatment or disparate impact."9 Disparate treatment exists when anemployer treats some employees better than others based on race."6 Toestablish a prima facie case of disparate treatment, the plaintiff mustdemonstrate that he or she applied for the position that he or she wasqualified for, but was rejected under circumstances that imply racialdiscrimination. 6'

When an employer uses employment practices that disproportion-ately favor different groups of employees, then the employees can bringa disparate impact claim. 62 Employment practices with a disparate im-pact are those that are facially neutral, but that, for example, excludewomen and minorities in practice.6 In such cases, the employer is re-quired to justify such practices by showing a business necessity.', Toestablish a prima facie disparate impact case, plaintiff must show that afacially neutral employment practice has a significant adverse effect ona specific group.6 Once that is done, the burden shifts to the employerto show that the practice is justified by business necessity and has anovert relationship to the job. 66

The Supreme Court defines the difference between disparate im-pact and disparate treatment claims in International Brotherhood ofTeamsters v. United States.'67 Proof of discriminatory intent is critical indisparate treatment cases because they arise in situations where theemployer treats a group less favorably because of race. 68 Proof of dis-criminatory intent is not required in disparate impact cases because they

157. See Hicks, 509 U.S. at 509.158. See id. at 509-10.159. See KATHANNE W. GREENE, AFFMATIVE ACTION AND PRINCIPLES OF JUsTICE 60

(1989).160. See id.161. See Burdine, 450 U.S. at 253.162. See GREENE, supra note 159, at 60.163. See H.R. REP. No. 102-40(11), at 2 (1991), reprinted in 1991 U.S.C.C.A.N. 694, 695.164. See Griggs v. Duke Power Co., 401 U.S. 424,431 (1971).165. See Burdine, 450 U.S. at 253.166. See id. at 254.167. 431 U.S. 324 (1977).168. See Teamsters, 431 U.S. at 335 n.15.

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usually involve facially neutral employment practices that treat onegroup more harshly than another.' 69

IX. THE CURRENT DEBATE ON COLOR-BLiND CASTING

Even though it has not been brought before the courts, the issue ofracial discrimination continues to percolate in the theater world andmedia.' 0 In 1990, the Miss Saigon controversy was the spark that ig-nited the flame and it continues to be the most notable example of al-leged racial discrimination and color-blind casting in the theater."' Associety approaches the brink of the twenty-first century, the debate con-tinues to grow. Since the Miss Saigon controversy, color-blind castingcontinues to be discussed by actors, directors, and journalists.'72

A. A Recent University Reaction to Color-Blind Casting

Color-blind casting seems to be the politically correct approach,yet many artists, including minorities are against it.' 3 In 1996, at theUniversity of California at Los Angeles, seven Chicano and Chicanastudents walked out of a play depicting a Chicana artist's life.' 4 The

169. See id.170. See Michael Kilian, Equal Opportunity Still Escapes Actors, CHI. TRiB., Aug. 13, 1998,

at 1. Minority representation in the theater is slowly becoming more diverse. See id. However,critics are still not satisfied. See id. Many prominent artists complain that pop culture continues toperpetuate stereotypes. See id. In the theater casts, there may be a sprinkling of minorities, but mi-norities rarely land the lead roles. See id. Sharon Jensen, executive director of NTCP stated, "Thisis a fluid issue .... We're in a different place now than we were [five] or [ten] years ago, andhopefully we'll be in another place in another five years. It's a process of continuing, and I hope ofopening up." 1d; see, e.g., Michael Riedel, 'Charlie Brown' & the Great Nonwhite Way, N.Y.PosT, Feb. 4, 1999, at 66. B.D. Wong, one of the leading protesters over the casting of JonathanPryce in Miss Saigon, is now playing the role of Linus in You're A Good Man, Charlie Brown onBroadway. See id. Riedel writes of the interesting irony that an Asian is playing a white role whenten years ago he complained of a Caucasian playing an Asian role. See id. B.D. Wong finds noth-ing wrong with his taking the role of Linus. See id. "With [Miss Saigon] we wanted to make thepoint that Asians were under-represented on Broadway. But I don't think I'm taking a job awayfrom a white actor. Besides, I think I'm more like Linus than most white people. I really fit thepart." Id.

171. See Kilian, supra note 170, at 1.172. See Chas. Floyd Johnson & Diane Kerew, Minorities in Television (visited Mar. 24,

1999) <http://www. caucus.org/what/qindexes/sum93/inorities.htmil>; Kilian, supra note 170, at1.

173. See John Digrado, Seven Walk Out Over: Students Oppose Caucasian's Role in Produc-tion on Frida Kahlo's Life, DAILY BRUIN ONLINE (May. 22, 1996)<http:llwww.dailybruin.ucla.edul db/issues/96/5.22lnews.play.htmil>.

174. See id.

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cause for the walkout was the casting of a Caucasian actress in the roleof the Chicana artist, Frida Kahlo, who is well known for her artspawned from her Mexican heritage and life struggles.' 5 The protestingstudents felt that Kahlo must be played by a Chicana actress becauseracial identity was a prominent emphasis in Kahl6's life.76 One pro-tester claimed that not only was Kahlo's life misrepresented, but someactors were ignored in the casting process.' 7 The director, Ruben Ama-vizca, said he cast the role according to merit and refused to make cast-ing decisions purely based on race. 7

1 Theater student Heidi Hernandezdescribed the controversy by saying, "It's just as much... discrimina-tion to cast someone just because they are Hispanic .... 179 However,the definition of color-blind casting is casting actors without regard torace when race is not germane to the character.8 ' In this situation per-haps color-blind casting was misapplied because race may have beengermane to the play.

B. August Wilson's Position on Color-Blind Casting

The debate took an interesting turn as August Wilson, one of thenation's most prominent African-American playwrights, faced off withartistic director Robert Brustein. 8' Brustein works for the AmericanRepertory Theatre in Cambridge, Massachusetts, and serves as a criticfor the New Republic as well. 82 Since the summer of 1996, when Wilsoncastigated color-blind casting in a national conference, the two havebeen debating the issue and continue to represent the two sides of thenational debate.'3

Wilson's position is that African-American actors who take whiteroles become "Uncle Toms," who compromise their cultural identity. TM

175. See id.176. See id.177. See id.178. See Digrado, supra note 173.179. Id.180. See supra notes 39-41 and accompanying text.181. See Janet I-Chin Tu, Playwright August Wilson, Now Settled in Seattle's Misty Nest,

Writes About the Black Experience Like No Other Storyteller, SEATTLE DiMES, Jan. 18, 1998, at12.

182. See id.; Mary Carole McCauley, Putting Race Center Stage, MILWAUKEE J. SENTINEL,Feb. 27, 1997, at 1.

183. See Tu, supra note 181.184. See McCauley, supra note 182; Cheryl I. Harris, Finding Sojourner's Truth: Race, Gen-

der, and the Institution of Property, 18 CARDOzo L. REv. 309 (1996). Harriet Beecher Stowe'sUncle Tom's Cabin has been lauded for its "antislavery tone." Id. at 368. On the other hand,

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He argues that when white theaters produce black plays, it is similar tothe old days where the slaves sang and danced for their masters.' 5 Wil-son believes that if an African-American actor plays a white role, theresult is diluted black art.'86 In the summer of 1996, Wilson stated that,"[t]o mount an all-black production of [A Death of a Salesman] or anyother play conceived for white actors as an investigation of the humancondition through the specifics of white culture, is to deny us our ownhumanity, our own history, and the need to make our own investigationsfrom the cultural ground on which we stand as black Americans."'' 7

Wilson's adamant stance on this issue must be analyzed in the contextof his work.'

This Pulitzer Prize-winning playwright, August Wilson, has takenit upon himself to write the story of the African-American experience inthis century.8 9 At one point, he was one of the most produced play-wrights in America." ° Benjamin Mordecai, associate dean of the YaleSchool of Drama, states that Wilson "has an incredible ear for the po-etry and dignity of the African-American experience that he has livedthrough. He writes of a very specific culture in a very specific place, butthe themes are quite universal.''. Wilson's plays tell the stories of blackmigration, the postwar economic boom leaving blacks behind, and thecivil rights movement. 92

Brustein, on the other hand, feels that Wilson's argument wouldlead to segregation in the theater, echoing the "separate but equal" erathat civil rights activists fought so hard to dispel."' One critic has statedthat Wilson "looks back with almost nostalgic fondness on the segre-gated communities of earlier decades."' However, Wilson argues, "[i]fyou look back at black America in the [forties] and [fifties], you'll find

Stowe's "abolitionist position is undermined by her adherence to romantic racialist myths in whichBlacks, though spiritually endowed, are childlike and intellectually deficient." Id. at 372. In fact,many blame Uncle Tom's Cabin for perpetuating racial stereotypes of "the faithful, bumbling,passive and feminized Uncle Tom" and inspiring the black face practices of the minstrel shows. Id.at 373.

185. See McCauley, supra note 182.186. See Tu, supra note 181.187. Id.188. See id.189. See id.190. See id.191. Tu, supra note 181.192. See id.193. See McCauley, supra note 182.194. Tu, supra note 181.

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a thriving black community that is culturally and economically self-sufficient. ,,

However, many facets of the debate have been glossed over. Mont-gomery Davis, artistic director of the Milwaukee Repertory Theater,suggests that, "The issue has been oversimplified in the debate .... It'smuch more complex. People are defining identity in terms of their heri-tage, as opposed to their individuality-an individuality tempered bytheir heritage."'96

Other critics say Wilson's approach will stunt the growth of blacktheater."7 If African-American actors are relegated to selecting onlyblack roles, it will be even more difficult for them to find work, andharder for them to develop their talent.9 Bill Jackson, an actor, teacher,and former artistic director of Hansberry-Sands, Milwaukee's all blacktheater stated, "There's a danger to black people from our kind, makingall our hills and valleys into one flat plain."''

Another criticism of Wilson's approach is its inapplicability to art-ists of more than one ethnic heritage.2m If Wilson feels that African-American actors should be restricted to black roles, where do actors ofboth African-American and Caucasian heritage work? And if Wilson'sposition is extended to other minorities, how specific could the ethnicmatching get? If Asians were restricted to Asian roles, how narrowwould the ethnic requirement be? Could Laotians work there? SouthVietnamese? Perhaps Miss Saigon would then be restricted to just Viet-namese actors, because although Asia spans a myriad of countries, theplay must be as specific as possible. According to David Frank, a Brit-ish actor, the underlying assumption of Wilson's position is that onecannot identify with someone different, which does not leave muchroom for the imagination and art.20' If taken to the extreme, this ap-proach towards casting could become tedious and ridiculous in applica-tion, since the point of acting is to be someone that you are not.

195. Id.

196. McCauley, supra note 182.197. See id.198. See id.199. Id.200. See id.201. See McCauley, supra note 182.

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C. The "Photo Negative" Approach

An interesting approach to color-blind casting is the "photo nega-tive" approach, which is the reversing of colors in a production wherethe race of the actors is important to the story line.20 A 1997 Washing-ton, D.C. production of Shakespeare's Othello starring Patrick Stewartcoined the phrase, "photo negative production" to describe this prac-tice.' Othello centers around the issue of racial separatism, where thelead role is black and the other roles are white. ' In the past, if a Cauca-sian wanted to play the role of Othello, they would use makeup toblacken their faces. 25 However, because of the denigrating implicationsof black face, such practices are met with disdain.2 6 Stewart had set hissights on the role, but felt constrained by the binds of political correct-ness.' So he conceived the idea to make the role of Othello white andthe society that rejects him black.03 Thus, the racial separation elementis still intact, and the "images of racial hostility flip back and forth."' '

This production of Othello represents color-blind casting at its best;cultural awareness is preserved, minority actors get their roles, and theplot is still presented effectively. When directors and actors are willingto be flexible and open-minded, productions will not suffer, but flourishlike this production of Othello, which was sold out four months before itconcluded.10

X. COLOR-BLIND CASTING IN THE THEATER TODAY

Recently, more productions explore multiethnic possibilities withcolor-blind casting and ethnic themes.2"' George C. Wolfe's Bring in'Da Noise, Bring in 'Da Funk on Broadway is currently a successfulproduction."2 Many did not anticipate that its hip-hop, rap-tap themewould appeal to audiences, but Bring in 'Da Noise, Bring in 'Da Funk

202. See David Richards, Patrick Stewart, Inside a Murderous Mind, WASH. POST, Nov. 12,1997, atDl.

203. See id.204. See id.205. See id.206. See id.207. See Richards, supra note 202.208. See id.209. Id.210. See id.211. See Patrick Pacheco, In Like A Lion, L.A. TIMES, (Magazine) Jan. 25, 1998, at 4.212. See id.

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proved them wrong.2" Other Broadway productions that primarily fea-ture African-Americans are Rent, Ragtime, and The Lion King, whichare all successful and artful.21 4 As for the Asian-Americans, Miss Saigoncontinues to serve as a rich source of employment, but it is not satisfy-ing for some wishing to portray Asian culture on stage."5 Tom Kouo,who formerly played the lead role of "Thuy" in Miss Saigon, stated:

I'm grateful for Miss Saigon for the opportunities it gaveme .... But in the end, it's still written by two French guyswho don't really understand who they're writing about, nomatter how hard they might want to. Being in the show, yourealize that you're not represented here. You're out there per-forming, speaking words written by people who don't knowwhat you really say, how you really say it."6

Another former "Thuy" at Miss Saigon, Welly Yang pooled the collabo-rative efforts of Asian-American performing talent and produced Mak-ing Tracks.217 Making Tracks is "an interdisciplinary work which pre-sented the rich contributions of [Asian-Americans] throughoutAmerican history, from railroad workers to new-age engineers buildingthe information superhighway-not your typical Broadway theaterfare."218 Making Tracks is currently being performed in universitiesthroughout the nation, and "[f]or a group of performers who made theirmarks playing oriental thugs and prostitutes, Making Tracks is, by con-trast, 'in-your-face' with [Asian-American] energy. 21 9

It appears that color-blind casting is becoming more accepted onBroadway."' African-American Angela Bassett played opposite Cauca-sian Alec Baldwin in Shakespeare's Macbeth, and African-AmericanKimberly Hester played as Guggenheim's French mistress in Titanic22'If critics say that color-blind casting causes the audience to stretch theirimaginations more than possible, the artists retort that theater is de-signed to do that.22 B.D. Wong, who played Charlie Chaplin, said, "If

213. See id.214. See id.215. See Terry Hong, Life After Miss Saigon, A. MAG., Aug.-Sept. 1998, at 78,79.216. Id. at 79.217. See id.218. Id.219. Id.220. See Pacheco, supra note 211.221. See id.222. See id.

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people come up to me and say, 'Look, Chaplin wasn't Asian,' I tellthem, 'Well, he didn't sing and dance either."' 2'

Despite the successes of color-blind casting, opportunities for mi-norities are still not completely adequate."4 "If we don't have a wide di-versity of ethnic representation, we feel that we've failed .... Ofcourse, if your play is about race prejudice, that's different. But mostmusical theater, particularly, is escapist, heightened reality.' ' Wolfecommented on the state of the theater today by stating:

There has been this proliferation of roles, but it's no break-through.... The commercial theater, which is always [twenty]years behind the rest of the country, is simply catching up. Ican't jump up and down about that. There are [African-Americans] in every single aspect of America-why not in thecommercial theater too?26

XI. COLOR-BLIND CASTING IN TELEVISION

The social impact of color-blind casting is expanded as televisionnow uses more multicultural casting." Jeffrey Mahon, professor ofMinistry, Media, and Culture at the Iliff School of Theology in Denver,points out that even if television looks "more black and white than rain-bow," it has come a long way in terms of diversity.'8 It seems that racialdiversity in television is more important, since television is so pervasiveand enters almost every home.

The Affirmative Action Department of the Screen Actor's Guilddiscussed the issue of color-blind casting on television with actors!"Actor Raymond Forchion stated:

It has been my experience that casting directors tend to think invery traditional terms .... I read characters all the time that I

223. Id.224. See id.225. Pacheco, supra note 211.226. Id.227. See Eric Deggans, The New Face of TV, ST. PETERSBURG TIMES, Sept. 29, 1997, at D 1.228. M.S. Mason, More Shades of Faces Pop Up On Prime Time, CHRISTIAN SCI. MONITOR,

Oct. 31, 1997, at 12.229. See Chas. Floyd Johnson & Diane Kerew, Minorities in Television (visited Mar. 24,

1999) <http://www. caucus.org/whatlqindexes/sum93/Minorities.html>; Michael Kilian, EqualOpportunity Still Escapes Actors, CHI. TRIB., Aug. 13, 1998, at 1.

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feel I would absolutely be right for, but because the word,'Black' is not in front of the character description, I wouldnever be considered for the role.20

Other minority actors are frustrated by the stereotypical roles thatthey are called to play, solely because they represent a certain race. 23

Actress Sumi Sevilla Haru says, "Because [Asian-Pacific-American]women are almost [nonexistent] in the media, it is no wonder that theyare an oddity in real life to many Americans. If they do not appear onscreen, they are usually subservient sex objects who do nothing to movethe plot." '

Media scholar George Gerbner conducted a study on women andminorities in television in collaboration with the American Federationof Television and Radio Artists and the Screen Actor's Guild .2 3 Thestudy covered ten years in the news, prime time, and daytime televi-sion.2 The study found that racial minorities were only represented by[thirteen percent] of the characters on prime-time television and [fivepercent] in children's programming. 5 Children grow up watching tele-vision, and when they see a mostly white cast, minority children wonderwhy they are not represented on the screen. 26

The most recent multicultural breakthrough on television is popdiva Whitney Houston's rehash of Rogers and Hammerstein's Cinder-ella, which aired on November 2, 1997.23 The classic fairy tale is com-monly played by an all white cast, reflecting the European tradition ofthe tale." Houston's production contains a cast reflecting all colors ofthe rainbow. Brandy, an African-American teen actress and singer,plays Cinderella, and Bernadette Peters, a Caucasian Broadway star,plays her stepmother with two biological daughters, played by a Cauca-sian and an African-American." The part of Prince Charming is played

230. Johnson & Kerew, supra note 229 (statement of Raymond Forchion).231. See id.232. Id.233. See Fairness in the Media Facts, IN MOTION MAG. (visited Mar. 29, 1999)

http://www.inmo tionmagazine.com/rainbowl.html.234. See id.235. See id.

236. See Patricia M. Worthy, Diversity and Minority Stereotyping in the Television Media:The Unsettled First Amendment Issue, 18 HASTINGS COMM. & ENT. L.J. 509, 535 (1996).

237. See Mason, supra note 228; Margy Rochlin, Fresh Princess, TV GUIDE, Nov. 1-7, 1997,at 21.

238. See Mason, supra note 228.239. See Rochlin, supra note 237, at 24; Mathew Gilbert, Rainbow Cast, No Pot of Gold in

'Cinderella', BOSTON GLOBE, Oct. 31, 1997, at C1 ("The DNA shakeup works, in that after a few

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by Asian-American Paolo Montalban, with Whoopi Goldberg, an Afri-can-American comedienne, and Victor Garber, a Caucasian, as his par-ents." ° Even if the genetic permutations are impossible here, the story isstill effectively told."4 The production has been praised for using itsmultiracial casting to tell the universal rags to riches story of romanceand fulfilled dreams. 22 Producer Houston employed this multiracial ap-proach to point out that the Cinderella story universally speaks to chil-dren of all colors and promotes social harmony. 3

XII. COLOR-BLIND CASTING IN FILM

Using multicultural casting to defy genetics is also being employedon the silver screen. Steven Spielberg's 1997 summer blockbuster, TheLost World, cast African-American Vanessa Lee Chester as CaucasianJeff Goldblum's daughter. ' Screenwriter David Koepp felt that the bestway to handle an interracial plot line is not to address it and leave it upto the audience to ponder. 5 Goldblum feels that interracial families areaccepted without an explanation in the real world, so why shouldn'tmovies do the same2 46

XIII. CONCLUSION

Ever since the Miss Saigon controversy, the issue of color-blindcasting in the theater continues to be hotly debated. The underlying is-sue is a showdown between the law and art: equal employment oppor-tunity versus artistic freedom. Although the issue has not reached thecourts, proponents and critics pepper the theater, journalism, and legalfields with various arguments, which all have merit.

Ultimately, theater is an illusion. It is the job of the actors to playsomeone that is different from them, and to ask that they only playsomeone of their own race would stunt their growth as actors and limittheir employment opportunities. Indeed, many actors feel that the law

minutes you don't really notice the racial discontinuities.").240. See Rochlin, supra note 37, at 24, 30; Gilbert, supra note 239.241. See id.242. See Howard Rosenberg, It's Beauty and the Beast, L.A. TIMEs, Oct. 31, 1997, at Ft.243. Rochlin, supra note 237, at 24.244. See Andy Seiler, Colorblind Casting in 'Lost World,' USA TODAY, May 30, 1997, at

Dl.245. See id.246. See id.

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should not restrain art.247 Artistic license is a valued part of this countryand should be respected in the theater."5 If the law forces a director tocast certain actors without regard to their race, it can be argued that thelaw is making artistic decisions. Unfortunately, the reality is that mi-nority actors have few opportunities to work in the theater."

Color-blind casting should always be encouraged when race is notgermane to the character of a play.2" The germaneness requirement issimilar to the business necessity defense in that a casting director mighthire an actor based on appearance, and not race, for the purposes ofauthenticity. Because of the difficult issues involved in color-blindcasting, it is not certain if an actor would succeed with a Title VII claim.One thing is clear, the uncertainty of color-blind casting makes it essen-tial that the legal profession considers all perspectives in this continuingdebate.

Bonnie Chen*

247. See Lois L. Krieger, Note, 'Miss Saigon' and Missed Opportunity: Artistic Freedom,Employment Discrimination, and Casting for Cultural Identity in the Theater, 43 SYRACUSE L.REV. 839, 863 (1992).

248. See id.249. See Harry Newman, Casting a Doubt: The Legal Issues of Nontraditional Casting, 19 J.

ARTS MGMT. & LAW 55, 55 (1989).250. See id. at 56.

* I wish to thank God, without which nothing is possible, and my mother for urging me topublish this Note. Thanks also to my father, Jamesina, and Jack for their stalwart support through-out the trials of law school. I additionally thank the unrelenting editors and staff of the HofstraLabor & Employment Law Journal for their dedicated efforts.

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